Related legal interpretation and risk tips on “Implementing gradual delay of statutory retirement age”

On September 13, the 11th session of the Standing Committee of the 14th National People's Congress passed a decision on implementing a gradual extension of the statutory retirement age. In the “Decision on the implementation of a progressive increase in the statutory retirement age”, what points do we need to focus on? Follow the professional interpretation of lawyers together to understand the risks and suggestions of relevant policies.

Policy content

Starting from January 1, 2025, the statutory retirement age of male employees and female employees whose original statutory retirement age is 55 years old will be increased by one month every four months, gradually increasing to 63 years and 58 years respectively; For female employees whose original statutory retirement age was 50 years old, the statutory retirement age shall be extended by one month every two months and gradually extended to 55 years old. If the State provides otherwise, such provisions shall prevail.

As of January 1, 2025, the provisions of the retirement age in the Interim Measures of The State Council on the Placement of Old, Infirm and Disabled Cadres approved by the Second meeting of the Standing Committee of the Fifth National People's Congress and the Interim Measures of The State Council on the Retirement and Retirement of Workers shall no longer be implemented.

From January 1, 2030, the minimum period of monthly contributions for employees to receive basic pensions will be gradually increased from 15 years to 20 years, with an annual increase of six months. Employees who have reached the statutory retirement age but are less than the minimum period of contribution may, in accordance with regulations, reach the minimum period of contribution by extending the payment of contributions or paying in one lump sum, and receive basic pensions on a monthly basis.

4. Employees who have reached the minimum contribution period may voluntarily choose flexible early retirement, with the advance time not exceeding three years, and the retirement age shall not be lower than the original statutory retirement age of 50 and 55 years for female employees and 60 years for male employees. If an employee reaches the statutory retirement age and the employer and the employee reach a consensus through consultation, the retirement may be flexibly delayed, and the delay time shall not exceed three years. If the State provides otherwise, such provisions shall prevail. In the course of implementation, employees shall not be forced to choose the retirement age against their will, illegally or in disguised form.

Fifth, the work is also in accordance with the principle of small adjustments, flexible implementation, classification and overall consideration, the implementation of the gradual delay of the statutory retirement age.

In the process of implementation, legal disputes may be encountered

(1) Termination of labor contract: Article 44 of the Labor Contract Law and Article 21 of the Implementation Regulations of the Labor Contract Law have similar provisions, and the labor contract shall be terminated when the worker reaches the statutory retirement age. If the worker reaches the statutory retirement age, the labor contract shall be terminated according to law, and the labor relationship between the employer and the worker shall be terminated. In this case, the employer shall not need to pay economic compensation.

However, there are still two different statutory retirement ages for women workers, namely 58 years and 55 years, and this issue will remain controversial in the future. The key criterion is to see whether the female employee belongs to the management technical post.

(2) Termination of labor contract: According to the current law, the employer shall not terminate the labor contract in accordance with the provisions of Article 40 (non-negligent dismissal) and Article 41 (economic layoff) of the Labor Contract Law if he has worked for the employer continuously for more than 15 years and is less than five years away from the statutory retirement age.

For example, in the future, employers will dismiss employees on the grounds of major changes in objective circumstances, and they need to open a calculator to calculate that the age of employees when terminating the contract is a few years away from the retirement age, and a slight mistake may cause illegal termination. It should be said that in the future, enterprises will dismiss employees with long working years, with greater risks, greater difficulties and more compensation.

(3) On the issue of retirement reemployment: Previously, retirement reemployment was equivalent to earning two jobs from one job. After the implementation of the new policy, the units can negotiate with the workers to delay the retirement age of no more than 3 years, theoretically speaking, the latest retirement age of male workers is 66 years old, before the age of 66, you are legally protected workers, enjoy the same employment protection as other workers, in terms of obtaining labor remuneration, rest and vacation, labor safety and health, injury protection and other basic rights and interests. Enjoy the same treatment as other workers, but whether you can still play a job and earn two jobs in the future may need to negotiate with the employer.

Relevant legal advice and risk tips

01.To the employer level

Increase in labor costs: the working years of workers will certainly rise further, and the compensation and compensation for the termination of labor contracts will also be mentioned. In addition, the benefits bundled behind the working years will also be increased, such as the length of medical treatment and sick pay, annual leave, seniority pay, etc., which will lead to further increases in labor costs.

The risk of dismissal is intensified: and the termination of the labor contract will be very difficult, such as the objective situation has a significant change in the cure-all terms of layoffs, basically can not be used in the old employees, incompetent work, economic layoffs, medical expiration continue to need treatment of employees, are difficult to unilaterally dismiss. Next, the bosses should pay attention to the dismissal of employees, layoffs can not be too willful, to once again improve the level of human resources management, looking for professional lawyers, and do a good job of legal risk prevention plans.

02. On the level of workers

Legally, it's much better to use the difficulties and challenges mentioned above to your advantage. Of course, in addition to the law, I think the controversial issue is also that ordinary workers are worried about excessive working hours, and some people joke that a company may have three generations under one roof, when can they enjoy retirement? On this question, I often draw an analogy. A bird playing on a high branch never worries about falling from the sky. Does it believe that the branch will not break? Of course not, because he's got good wings. Therefore, no matter how the external environment changes, we must strengthen ourselves, on the one hand, the ability to be strong, on the other hand, the body is well protected, no matter whether it is extended to so long before retirement, at least to ensure a smooth old life. I wish everyone a smooth transition and an early retirement!